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Ibrahim v State of New South Wales (South Western Sydney Local Health District)

Ibrahim v State of New South Wales (South Western Sydney Local Health District)

Case [2021] NSWPICMP 92 16 June 2021

Permanent Impairment Rating System (PIRS)

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DETERMINATION OF APPEAL PANEL
CITATION:	Ibrahim v State of New South Wales (South Western Sydney Local Health District) [2021] NSWPICMP 92
APPELLANT:	Mona Ibrahim (Khammo)
RESPONDENT:	State of New South Wales (South Western Sydney Local Health District)
APPEAL PANEL:	Member Carolyn Rimmer Professor Nicholas Glozier Dr Patrick Morris
DATE OF DECISION:	16 June 2021
CATCHWORDS:	WORKERS COMPENSATION- AMS made an assessment of 7% WPI as a result of a psychiatric injury deemed to have occurred on 28 August 2017; statement of the appellant dated 10 March 2021 not received on the appeal as not probative; whether error demonstrated in respect of PIRS categories social and recreational activities and social functioning; Held- no error demonstrated; MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 March 2021 Mona Ibrahim (the appellant) made an application to appeal against a medical assessment (the appeal) to the Registrar of the Workers Compensation Commission (the Commission). The medical assessment was made by Dr Douglas Andrews, Approved Medical Specialist (the AMS) and issued on 11 February 2021.
The respondent to the appeal is the State of New South Wales (South Western Sydney Local Health District) (the respondent).
After this MAC was issued and before the appeal in this matter was allocated to the Medical Appeal Panel (MAP), the New South Wales Workers Compensation Commission was abolished (cl 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act from 1 March 2021. The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). Relevantly, the Approved Medical Specialist in the former Workers Compensation Commission became Medical Assessors (MA) in the Personal Injury Commission. However, as at the time when the MAC was issued, Dr Andrews bore the title of Approved Medical Specialist and in this decision will be referred to by his former title “Approved Medical Specialist”.
The appellant relies on the following grounds of appeal under s 327(3) of the 1998 Act:
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ibrahim v State of New South Wales (South Western Sydney Local Health District) [2021] NSWPICMP 92
Case: [2021] NSWPICMP 92
Decision Date: 16 June 2021

CaseChat Overview and Summary

The case before the court involved an appeal by an individual against an assessment of workers' compensation. The appellant, who had sustained a psychiatric injury, was challenging the assessment made by the Australian Medical Services (AMS) on 28 August 2017, which resulted in a 7% whole person impairment. The appellant submitted a statement on 10 March 2021, which was not considered probative in the appeal, focusing instead on whether the assessment correctly categorised the impairment in terms of social and recreational activities and social functioning.

The court was tasked with determining whether there had been an error in the assessment of the impairment as it related to the Personal Injury Rating Scale (PIRS) categories of social and recreational activities and social functioning. Specifically, the court had to consider if the appellant had demonstrated any error in the assessment that would warrant a different outcome. This required an examination of the evidence presented and the application of the relevant legal standards for assessing psychiatric injuries in the context of workers' compensation.

The court found no demonstrated error in the AMS's assessment of the impairment. It concluded that the appellant had not provided sufficient evidence to show that the assessment was flawed. The appeal was therefore dismissed, and the decision of the Medical Assessment Commission (MAC) was confirmed. The court emphasised that the appellant's statement, while relevant, did not alter the outcome because it did not sufficiently address the criteria for the impairment assessment.

The final orders of the court confirmed the decision of the MAC, upholding the assessment of 7% whole person impairment for the psychiatric injury. The court did not find any merit in the appellant's argument regarding the social and recreational activities and social functioning categories, and as such, the appeal was dismissed. The parties were directed to pay their own costs of the appeal.

Orders